Blog Editors

On March 25, 2016, 81 Fed. Reg. 16286, OSHA issued a new final rulemaking to reduce silica dust exposure that will directly affect more than 2 million construction workers who drill, cut, crush, or grind silica-containing materials such as concrete and stone, and 300,000 workers in general industry operations such as brick manufacturing, foundries, and hydraulic fracturing. OSHA explains that silica dust exposure occurs in common workplace operations involving cutting, sawing, drilling, and crushing of concrete, brick, block, rock, and stone products (such as construction tasks), and operations using sand products (such as in glass manufacturing, foundries, sand blasting, and hydraulic fracturing).

On December 17, 2015, the U.S. Department of Justice (DOJ) announced a major new initiative to increase the number of criminal charges in worker endangerment and worker safety cases. Although the DOJ and the Occupational Safety and Health Administration (OSHA) have had a worker endangerment initiative for a number of years, the new changes are intended to bolster the likelihood and number of criminal prosecutions which historically have languished, according to DOJ, due to the OSH Act’s misdemeanor criminal provisions.

In my last post, I discussed the fact that the most important tool for a contractor is your written contract, which can help build a customer’s confidence in your company and avoid the types of misunderstandings and unrealistic expectations that ultimately can lead to a breakdown of the customer relationship, jeopardize the project and result in litigation.

The most important tool for a contractor is your written contract. A good solid contract is the foundation for a positive experience for both you and your customers. It establishes a relationship with your customers, and builds their confidence in you and your company. More importantly, it helps to prevent misunderstandings and false expectations that can lead to a breakdown in your customer relationship, jeopardize the project and result in litigation.

On August 23, 2013, OSHA issued a Notice of Proposed Rulemaking designed to reduce the permissible exposure limit (PEL) associated with silica dust exposure. OSHA is proposing a new PEL for respirable crystalline silica (quartz, cristobalite, and tridymite) of 50 μg/m3 in the general industry, construction, and shipyard sectors, a standard anywhere from two to five times more stringent than current PELs that date back to 1971.

If you manage or perform renovations, repairs, or painting activities on the exterior or interior of public building or commercial buildings, you should be aware that EPA is currently evaluating whether and how to regulate such activities in public buildings or commercial buildings constructed before 1978 that pose lead-based paint hazards. On Monday, May 13, 2013, EPA issued a notice in the Federal Register that it is seeking public comment on this topic until July 12, 2013, and will host a public meeting at EPA’s headquarters on June 26, 2013.

As a construction professional, it’s likely you’ve had your fair share of experience with bonds (such as payment bonds, performance bonds, contract bonds and contractor license bonds), but understanding the purpose of surety bonds can sometimes be difficult to grasp for even the most experienced contractor.
Today’s guest post is courtesy of Sara Eisenberg, Director of Educational Outreach at SuretyBonds.com. Sara will explain why it is so important for construction professionals to understand the bonding process and how you can become more established in the industry by making sure you know the bond that’s required for projects before you even submit a bid.

The key to any good public-private partnership (P3) is having the vision and commitment to succeed. For all those interested in growing a community through economic development, what occurred in Riverside, Missouri, this morning is a great example of the public and private sector working together to accomplish more than they could individually.

Kansas has not had a state-wide prevailing wage requirement for public projects since 1987, but individual localities could require prevailing wage if they thought it was good public policy. That all changed this week with the passage of House Bill 2069, which bans a political subdivision from requiring the payment of prevailing wage on public projects.

I’m currently wrapping up a great weekend at the American Planning Association’s (APA) National Planning Conference in Chicago, Illinois. For the MCL Blog readers unfamiliar with this event, the APA hosts an annual development conference for planning professionals and representatives from communities all over the United States. The five-day conference offers seminars on a broad range of topics, from common planning problems like the use of economic development incentives, to some unique regional issues, such as whether roosters and goats should be allowed under a city’s urban agriculture ordinance. (Think Portland!)

I am frequently asked this question by both contractors and commercial property owners. Generally, owners of commercial property (at least in Missouri and Kansas) will not be liable for contracts entered into by their tenants unless the tenant is acting as an agent of the owner, or the lease requires the tenant to make certain improvements that enhance the value of the property.

One of the key issues a buyer should consider before purchasing property is whether or not to order a Phase I Environmental Site Assessment. The purpose of the Phase I is to evaluate a property’s environmental conditions and assess the likelihood of any contamination being present onsite. From a buyer’s perspective, the Phase I is used to identify possible contamination on the property and to provide some protection from liability should environmental hazards later be discovered.

It’s that time of year again: the legislature is back in session, and a host of bills are moving through the Kansas House and Senate. Recently, I received a legislative update from the Kansas Society of Professional Engineers concerning Senate Bill No. 54. Given the content of the bill, I was surprised to learn there are two proposed amendments currently being discussed in the capital.

The recent snow storms in the Midwest and the possibility of ongoing weather interruptions this week have many business owners facing issues such as lost productivity and client service interruption. Most business owners should be wondering: “Is there anything I do to prevent lost productivity and potential job completion problems?” Here at MidwestConstructionLaw.com, we’ve come up with a few tips for providing outstanding service to construction projects/ clients during inclement weather.

This is the best time of the year for sports. March Madness is approaching and my Kansas Jayhawks are preparing for another run at the Big 12 Championship. Opening Day for the Kansas City Royals is a few months away and they are going to break 500 this year.* The Kansas City Chiefs have the number one pick in the NFL draft and are sure to take the next Tom Brady. Given all these great sports diversions, why am I thinking about San Francisco’s new stadium? In short, because it sounds like a great place to watch a football game, and also because it will be one of the first NFL stadiums to achieve LEED Certification.

It is not often that the Kansas Supreme Court reverses Kansas judicial precedent and offers new avenues for plaintiffs to pursue claims. What does this mean for contractors? In short, it means a residential home owner can now make claims against a contractor for breach of contract and/or negligence.

You don’t know it yet, but there are e-mails stored on your computer that can be taken completely out of context in litigation. Frightened? You should be. Zombie e-mails are out to destroy your business.

On January 3, 2013, a general contractor for the Oregon Department of Transportation, Granite Construction Co., settled allegations of Clean Water Act stormwater permit discharge violations for $735,000. The settlement is currently subject to a 30-day comment period as reflected in the January 18, 2013, federal register notice.

I often receive calls from my construction clients asking “How long do I have to file a mechanic’s lien in Kansas?” The solution to this dilemma is to file a Notice of Extension of Lien with the Clerk of the District Court in the county where the project is located.

Last week, Albracht Perma-Siding and Window Co., of Omaha, Nebraska, agreed to pay a $6,188 civil penalty to the United States to settle allegations that it failed to notify an Omaha couple about lead-based paint risks before the company or its subcontractors performed renovation work in their pre-1978 home. The company also failed to keep records of lead safe practices for work it performed at 10 pre-1978 homes in Lincoln, Bellevue, and Omaha, Nebraska

I recently arbitrated two construction cases using two very different arbitrators. After arbitrating both cases, my position is that using an industry professional or a construction law attorney as an arbitrator is a choice that should be driven by the facts of the case. Before deciding on an arbitrator, you should ask yourself if the case hinges on legal theories or on methods of construction.

There are times when an owner may want to sell their real property during a construction project. As an owner, what are the key issues you should consider? As the general contractor, what is likely to be requested by the owner and by the buyer’s lender? This blog post addresses some of the larger issues that will need to be resolved in the transaction and should provide a general roadmap of how to structure the process.

Voters in a Kansas City, Missouri special district recently approved funding for a $100 million streetcar system in the downtown area. The two-mile streetcar system will run from the River Market to Union Station. Supporters such as Mayor Sly James hope this investment will generate further development along the streetcar corridor and ultimately result in new streetcar lines throughout the metro area.

A recent decision from the Missouri Court of Appeals Western District examined a couple of interesting items in the world of Missouri mechanic’s liens. Of interest to Midwest Construction Law Blog readers are two items: (1) what does a contractor need to prove in a breach of contract claim; and (2) how can a misstatement in a mechanic’s lien invalidate the entire lien? In R.K. Matthew Investment, Inc. v. Beulhah Mae Housing, LLC, the Court of Appeals offered us some guidance on these two important topics.

I have been thinking about dedicating a portion of Midwest Construction Law Blog to the Construction Hall of Shame. Look for this in the future but I think we may have its first entry with this story out of France.

On any construction project, bonds should be considered as part of the owner’s or general contractor’s strategy for risk management or risk allocation. Bonds are separate from the types of insurance generally found on the construction projects (builder’s risk insurance, commercial general liability, workers’ compensation/employer’s liability, and umbrella coverage), but nonetheless they can be equally as important to the success and failure of any project.

Many of the construction disputes I am involved with involve a claim for lost profits and overhead. The typical situation is where one party (often the owner) alleges a breach and then terminates either the general contractor or the subcontractor. The terminated party then makes a claim for lost profits and overhead. The two questions usually asked by contractors and subcontractors in these situations are: (1) “Am I entitled to lost profit and overhead damages” and (2) “How are they calculated?”

Businesses that own contaminated property in Missouri, such as brownfield sites and former industrial locations, can avail themselves of Missouri’s Environmental Covenant Act (MoECA), RSMo Section 260.1000 et seq., 10 CSR 25-18.010(18) to expedite cleanup and, if site conditions allow, beneficial reuse of those properties. In particular, property owners can record an environmental covenant on their property that restricts certain land uses and site activities to minimize exposure to impacted soils and groundwater.

After some consideration of how much work goes into the Thanksgiving meal, I realized it is just like any other construction project. All the key players are on the site, we just know them by different names. Planning and understanding your workforce are the keys to a successful Thanksgiving meal.

Drafting a mechanic’s lien and “notice of intent” (§429.100) involves crucial steps that can be harmful to your case if overlooked. Whether you forgot to verify the “just and true account” (§429.080) of the amount due, or are unsure of the proper county for filing your lien, you can avoid these service errors by taking the time to learn the following steps involved in filing and drafting a mechanic’s lien in Missouri.

Nearly 10 years to the day when EPA issued its Draft Guidance for Vapor Intrusion, EPA is poised to finalize its Final Vapor Intrusion Guidance on or before November 30, 2012. As a result, business that build or own property near contaminated sites, such as Brownfield Sites and industrial sites, need to stay aware of how these changes may impact your operations. More and more businesses, for example, will require a vapor barrier or a vapor migration system (active or passive) that diffuses vapors from the building to satisfy EPA’s requirements.

The sequestration report issued by the Obama administration calls from a 9.4% cut in defense spending and an 8.2% cut in non-defense discretionary spending. While this report has the defense industry in a panic, isn’t the government still the largest purchaser of services?

As a contractor, architect, engineer or project manager, chances are you’ve been in a difficult position relating to the sharing of information on the job site. With the recent advances in technology, you’ve probably wondered if there are options to help better manage your time when dealing with plans and plan revisions. If so, you’ll be happy to know “there’s an app for that.”

Recently, I attended an ABA seminar entitled “Minority Contracting Programs: A Growing Criminal Risk to Corporations.” The program touched a variety of MBE/WBE/DBE issues, but what really caught my attention was the concept of the “ostrich jury instruction.” This instruction may be given to jurors in criminal cases involving contractor fraud in obtaining government contracts with set-aside programs.

In an effort to better understand sustainable products in the construction industry, I recently toured the Derbigum Americas, Inc. manufacturing plant in Kansas City, Missouri. Craig Isaacson, VP of Business Development, for Derbigum was kind enough to conduct the tour and answer my numerous questions on sustainability issues.

One of the nice things about using the American Institute of Architect’s (“AIA”) construction documents is that courts have given us ample guidance on how to construe the various clauses within each family of documents. On August 3, 2012, the Kansas Court of Appeals in Neighbors Construction Co, Inc. v. Woodland Park at Soldier Creek, LLC offered us a little more insight into how the AIA General Conditions work in regards to settling payment disputes between the owner and the general contractor.

Public Private Partnerships (“P3 Contracts”) create unique challenges for not only Missouri public entities but also for the contractors bidding on jobs that may fall in the grey area between a “public work” and a “private project.” In this posting, we focus on some of the key clauses that should be included in every P3 contract involving “public works.”

In Ribarchak v. Municipal Authority of the City of Monongahela (Penn.), a prime contractor submitted a bid to a public authority, identifying a specific subcontractor in its bid. The public authority accepted the prime’s bid and awarded it a contract. The prime later substituted the named subcontractor with another subcontractor, and the named subcontractor sued for breach of contract.

In Florida, there is no duty of a real estate developer to disclose to prospective residential purchasers information about the neighborhood that may adversely impact property values, according to the court in Luis Virgilio v. Terrabrook Vista Lakes L.P., et al. , Case No. 11-11027 (5/18/12). In reading an overview of the case, this situation is very fact intensive and could vary from state to state based upon the peculiarities of state specific laws.

This month, the Kansas Supreme Court decided a case that affects every business that sells products for resale in Kansas. Under Kansas antitrust law, any arrangement, contract, agreement or combination with a reseller that is designed or tends to control prices is illegal. This means that resale price agreements between suppliers and their retailer customers are unenforceable and could subject suppliers to significant penalties. These laws apply to suppliers whether they are based in Kansas or simply provide products for sale in Kansas.

With Iowa’s recent passage of House File 675, requiring the creation of a computerized data base for residential mechanic’s liens, the state took a step forward in helping contractors and potential buyers determine if there are liens on residential property. Whether this will help contractors receive payment for the work they have provided on such properties is yet to be seen but it is a step in the right direction.

I was asked to review a recent case from New Jersey captioned “ Vollers Excavating and Construction, Inc. v. Citizens Bank of Pennsylvania (March 5, 2012). It appears to stand for the proposition that a bank is not liable to a subcontractor on a job where the construction borrower of the bank, a general contractor, filed for bankruptcy leaving the subcontractor without a remedy. After reviewing the case, the loan documentation clearly indicated the loan proceeds would not be subject to the claims of any subcontractor.

I wish I had mentioned this issue in my recent presentation to the ABA Construction Forum but another solar manufacturer filed bankruptcy. Given the issues with the economic viability of sustainable products, owners and contractors need to look closely at sustainable manufacturers by protecting themselves with contract language.